8

The September
Laws

No sooner had the state legislature enacted the April laws than the real estate interests launched a campaign to water them down. The laws might protect some tenants from profiteering landlords, they believed, but they would do nothing to relieve the housing shortage; if anything, they would discourage residential construction. They would also reduce property values and stifle real estate transactions. As Edward P. Doyle, legislative agent for the Real Estate Board, pointed out, many deals had fallen through because under the April laws, which empowered the municipal court judges to grant tenants stays of up to twelve months, sellers could not tell buyers when they could take possession. Although the real estate interests realized that there was no chance the legislators would repeal the April laws, they thought there was a possibility they might amend them—and, in particular, that they might exempt some residential structures from the most stringent of the laws. Hence the Real Estate Board drafted several amendments, most of which were incorporated into a bill that was filed in mid-April by Senator Alvah W. Burlingame. A Brooklyn Republican (and a strong supporter of the effort to ease the housing shortage by amending the Tenement House Act of 1901), Burlingame was one of the few legislators who voted against the April laws. Stressing that “the housing problem could not be solved by harassing landlords,” he said the only reason these laws were enacted was that “election day is not far off.”1

Senator Burlingame's bill carved out a handful of exemptions to the three April laws that were the keystone of the recent legislation—chapter 136, which declared rent hikes of more than 25 percent in one year “unjust, unreasonable and oppressive”; chapter 137, which allowed tenants to use chapter 136 as a defense in summary proceedings for nonpayment of rent; and chapter 139, which empowered the municipal court judges to grant stays of up to twelve months. These exemptions applied to buildings that had been “constructed or substantially constructed for dwelling purposes” after April 1, 1920, the date on which the rent laws went into effect. They also covered properties that were “required, in good faith, for immediate and substantial reconstruction or complete building” as an apartment house, provided that the plans were approved by one of the borough building departments. The Burlingame bill also provided that chapters 136, 137, and 139 would not apply in a few other cases. One was where a tenant who had been given written notice of a rent hike at least four months prior to the termination of a lease of one year or longer failed to notify the landlord within thirty days whether he was willing to renew the lease at the increased rent. Another was where the tenant had been occupying the premises by virtue of a lease of two years or longer that expired on or before October 1, 1920. Yet another was where a building had been sold (or was about to be sold) as a cooperative to members who intended to live in it.2

Senator Burlingame argued that the bill would ease the housing shortage and protect the hundreds of landlords “who are now subject to unfair discrimination under the far too drastic laws we have just enacted.” But Senator Charles C. Lockwood, whose committee had drafted most of the April laws, spoke out forcefully against the measure. The bill, he said, would nullify the new laws, leaving many thousands of tenants “at the mercy of the worst type of rent profiteers.” Lockwood also pointed out that the Burlingame bill was unnecessary because the city's Board of Municipal Court Justices had recently adopted a set of rules that provided more than adequate protection both to landlords who wanted to remodel their buildings for dwelling purposes and to tenants who hoped to purchase their apartments on a cooperative basis. A. C. McNulty, counsel to the Real Estate Board, responded that the Board of Municipal Court Justices’ rules rested on nothing but “moral suasion.” They had “no legal force” and could be disregarded by the judges. Whatever its merits, the Burlingame bill stood no chance. Although many legislators were aware the April laws would do nothing to stimulate residential construction, they were extremely reluctant to reopen the issue of rent profiteering at the end of the session. So they shelved the Burlingame bill (and apart from making it somewhat more expensive for landlords to bring summary proceedings, took no action on the other proposals to amend the April laws).³

The legislators shelved the Burlingame bill for several reasons, not the least of which was that they were afraid that if they watered down the April laws they would inflame New York City's tenants. Their fears were not altogether groundless. On the eve of the passage of the April laws the newly formed Tenants Defense League mounted a campaign to enlist the 800,000 members of the Jewish labor unions in a citywide rent strike on May 1, 1920. Shortly thereafter rumors spread that tens of thousands of residents of Brownsville and other Brooklyn neighborhoods were getting ready not only to go on strike, but to organize tenant soviets as well. To many New Yorkers, it seemed that the city's agitators, most of whom were trying “not to redress real grievances but to create fancied ones,” wrote the Times, were planning a “Red revolution” to coincide with May Day. New York officials warned that the city would not put up with what Arthur J. W. Hilly, chairman of the Mayor's Committee on Rent Profiteering, called a “display of red-flagged disorder.” All “the power of the city Government would be invoked to uphold the law,” he vowed. As well as issue warnings, Hilly assured the tenants that now that the April laws were in place they had no cause to go on strike, much less resort to violence. Even Harry Rich, head of the Brooklyn Tenants Protective Association, one of the tenant leaders who dismissed the talk of a huge May Day demonstration as “ridiculous,” stressed that in view of the enactment of the April laws “a rent strike was unnecessary.” Apparently the tenants agreed. Only a few hundred went on strike on May Day—a tribute, said Leo Kenneth Mayer, counsel to the Mayor's Committee, to “the new rent legislation passed in Albany.”4

Hilly was optimistic that the April laws would discourage landlords from engaging in rent profiteering and tenants from going on rent strikes. But would they? More than anything else, the response of the municipal court judges would be decisive. As Aaron J. Levy, president of the Board of Municipal Court Justices, told his colleagues, the new laws gave them more power than they “have ever had before.” Indeed, he said, no legislature had ever given so much power to a court. Not even the U.S. Supreme Court had such “extraordinary power,” wrote Stanley M. Isaacs, a sharp critic of the April laws. While the municipal court judges did not have “virtually absolute power” over landlord-tenant disputes, as the Times claimed, they did have virtually unheard-of discretion. Although the legislature did not authorize the judges to fix the rent, it did empower them to determine whether the rent was reasonable—and, if they found it was not, to deny the landlord's request for a final order. In the process, Judge Frederick J. Spiegelberg stressed, the judges were not bound by the so-called 25 percent rule. It was well within the judge's power to approve a rent hike of more than 25 percent or disapprove one of less than 25 percent. In early April, moreover, the Board of Municipal Court Justices adopted a set of rules to deal with the new laws, one of the most controversial of which provided that the judges should not grant a stay in a proceeding where the landlord showed that he or a member of his family wanted the premises “for immediate and permanent occupancy.” But as McNulty pointed out, these rules were not binding.⁵

Many New Yorkers were confident that the municipal court judges could be counted on to exercise their new powers in a way that was fair to both landlords and tenants. Chief among them were the judges themselves, many of whom strongly supported the April laws. They had long complained that under the existing landlord-tenant laws there was not much they could do to protect the city's tenants from profiteering landlords. It was time to rewrite the laws, said Harry Robitzek, who told the committees on cities, “There is not a judge in the municipal court who cannot be relied upon to give a square deal to the landlord and to the tenant.” Aaron J. Levy agreed. The municipal court judges were fully capable of using their discretion in an evenhanded way, he held. If one or another of them abused it, the appellate courts would soon “set him right.” Other New Yorkers were not so sanguine. Former Judge John Boyle, Jr., questioned the wisdom of enacting a law whose impact would vary from one court to another and from one day to the next. J. C. M. Phillips, who spoke for the Greater New York Taxpayers Association, held that no one, not even a municipal court judge, should be entrusted with “such wide discretion” in matters about which the public had such strong feelings. And McNulty predicted that if the April laws were enacted the courts would be so inundated with landlord-tenant disputes that “it will be months[,] if not years, before a majority of [the cases] can be heard and disposed of.”6

Even before the April laws were enacted, many landlords realized that the state legislature was about to do something to curb rent profiteering. Hence more than a few decided to serve notice before the legislature acted, informing the tenants that they would soon have to pay a higher rent or move out. If the old tenants balked at paying the increased rent, the landlords were confident that they could replace them with new ones. To the landlords it also made sense to serve notice after the April laws were enacted. Given that the municipal court judges were now empowered to grant stays of up to twelve months, the sooner the landlords started summary proceedings the sooner they could recover their property. Unwilling to pay the increased rent or move out of their homes, some tenants went on strike. Two thousand of them even joined a demonstration outside Olav Scholem, a Brooklyn synagogue where a few of their landlords worshipped. But after the April laws went into effect, most tenants were inclined to heed the advice of Hilly and other city officials who urged them not to go on strike but to trust the municipal court judges. Jacob S. Strahl, who presided over Brooklyn's Fourth District Court, was one of the many judges who favored this approach. As he said to a Daily Eagle reporter, “My advice to tenants, when they receive an eviction notice, is not to be alarmed. Let them take the matter calmly, proceed to court and allow the presiding justice there to determine what is to be done.” The tenants would be treated fairly, said Strahl, as would the landlords.⁷

The result was pretty much what McNulty predicted. In the week or so after the April laws went into effect the municipal courts were inundated with what the Standard Union called “a record-breaking flood” of landlord-tenant disputes. Nearly five hundred cases were heard in Brooklyn's Seventh District Court. “It was the biggest day's business the court has ever done,” reported the Eagle. “More than 1,000 litigants and their families jammed the sidewalks, hallways and courtrooms,” added the Times. Hundreds of cases were also on the calendar in Brooklyn's Second, Third, Fourth, and Eighth district courts. In one Brooklyn court the calendar, which usually ran to no more than a foot or two, came to fifteen feet. And in some courts, observed the Eagle, the calendar was so long that it “had to be rolled on spindles like adding machine tapes.” The municipal courts were packed in Manhattan and the Bronx too. On one day in early April more than 350 cases were heard in the Seventh District Court in Harlem and nearly three hundred in the Sixth District Court on the Upper East Side. On April 6 more than a thousand people tried to force their way into Judge William E. Morris's courtroom in the Bronx, a courtroom that held five hundred. And on April 8, the Times reported, “More than 450 litigants greeted Justice Harry Robitzek when he opened the Second Municipal Court yesterday.” Looking at the hundreds of men, women, and children who jammed the courtroom, Robitzek said he had “never witnessed such a scene.”8

The municipal courts were not as busy in the second half of April. But with tens of thousands of leases due to expire shortly—and untold numbers of stays about to run out—some judges feared the worst was yet to come. “The conditions on May 1 will be such as we have never experienced before,” said Strahl, who had heard more than three thousand landlord-tenant cases since the April laws were enacted. Strahl may have exaggerated, but not by much. The municipal courts were again inundated with landlord-tenant cases in early May. Judge Morris had seven hundred on his calendar. Judge Panken, who presided over one of the five courts in Manhattan's Second District, which included the Lower East Side, had almost as many. Judge Charles B. Law, who presided over Brooklyn's Seventh District Court, had such a full calendar that he had to hear cases from nine in the morning to seven in the evening. Summer was ordinarily a quiet time in the municipal courts, but not in 1920. The April laws notwithstanding, the Bronx courts “continue to be jammed with landlord-tenant cases,” the Home News wrote in late July. In early August it reported that more than eight hundred such cases were on Robitzek's calendar, which was so full that Robitzek held court from nine-thirty to six and the chief clerk ordered the court attendants to cut short their summer vacations. Some of the more than two thousand men, women, and children who jammed Robitzek's stifling courtroom nearly fainted as they waited for their cases to be called. The Brooklyn courts were so “packed,” said Strahl, that “I found it necessary to sit until seven, half past seven and eight o'clock every night, although summer sessions are supposed to close at two o'clock in the afternoon.” He even took only fifteen minutes for lunch.⁹

As some judges acknowledged, it was almost impossible to hear so many cases and still do justice to both landlords and tenants. If each case was given the attention it deserved, if both sides were allowed as much time as they needed, “the calendar would be choked,” one judge told a leader of the Fair Play Rent Association. Making matters worse, the courts were jammed with tenants (and their neighbors), landlords (and their agents), and lawyers—many of whom reminded a Home News reporter of a “chameleon,” pleading on behalf of the tenants one minute, fighting for the rights of the landlords the next, and doing so “without a change of countenance, even a smile.” “In most of the courts,” observed the Eagle, “S.R.O. [Standing Room Only] signs would have been grossly misleading—there wasn't standing room for an under-sized molecule.” The crowds were often so large that it was very hard for the landlords and tenants to get into the courtroom and, once they did, to make their way up the aisles to the witness stand. As well as very crowded, the courts were very noisy, sometimes unbearably so. With so many people talking to one another, it was at times “absolutely impossible to hear what is being said,” complained the judges. In an effort to prevent what the Times called “the buzz of conversation” from drowning out the witnesses, Robitzek pounded his gavel so hard one morning that he broke it. He “weathered the storm” with what was left of it. Some courts were so tumultuous that the police had to be summoned to maintain order.¹⁰

Critics of the April laws charged that even if the courts had not been inundated with landlord-tenant cases, the judges would not have been able to do what was asked of them. “They are not as a rule men of property,” wrote Albert Atterbury, a New York City landlord; “nor have they practical experience in the business of managing real estate.” How, asked Stanley M. Isaacs, was a judge, even a conscientious judge who was not swayed by political considerations, supposed to determine a reasonable rent when the state legislature had not defined it? The April laws, he pointed out, did not say whether a reasonable rent should be based on the market value of the property or the landlord's equity in it. Nor did they say what deductions should be made in calculating net income, whether depreciation should be taken into account, how capital improvements and other “extraordinary expenditures” should be dealt with, and “whether the landlord should be allowed to recoup the losses of previous years, and, if so, over how long a period.” Also, Isaacs asked, how was a judge supposed to determine a reasonable rent when he has not seen the apartment, when he does not know the size of the rooms and “whether they are light or dark,” when he has no idea whether the landlord is providing “good service or bad” and whether he is taking care of the property or neglecting it? To get this information took a lot of time, and given the crushing caseload, the judges had very little. All they had, said Isaacs, were the “ex parte statements of landlord and tenant, [which were] of course mutually contradictory.”11

Although the judges had their work cut out for them, they soldiered on. Working with what the Call described as “lightning-like rapidity,” they disposed of hundreds of cases not in months, as McNulty had predicted, but in days and even hours. The proceedings were often “superficial and undignified,” Isaacs claimed, and sometimes “confused and disorderly.” Thus said McNulty, “there were as many differences of opinion as to how the rent laws should be applied as there were [municipal court] justices.” Although the differences were not as striking as McNulty said, they were striking enough. A telling example took place in Brooklyn when the F.A.L. Realty Corporation raised the rent at 765 Park Place from $29 to $55 a month, an increase of nearly 90 percent. A tenant named John Eichbauer refused to pay the rent on the grounds that it was unreasonable. F.A.L. Realty responded by bringing summary proceedings against him. Sitting in Brooklyn's Fourth District Court, Judge Jacob S. Strahl ruled in favor of Eichbauer and ordered F.A.L. Realty to reduce the new rent to $36.25, or only 25 percent more than the old rent. Another tenant, John Janson, refused to pay the increased rent for the same reason. F.A.L. Realty brought summary proceedings against him too. Sitting in the same court, Judge O. Grant Esterbrook held that the new rent was not unreasonable and ordered Janson to pay the $55 or move out. As the result, the Brooklyn Daily Eagle wrote, one tenant was now paying half again as much as another to live in the same building and in a “practically identical” apartment.¹²

Two months later Aaron J. Levy grudgingly confirmed what many New Yorkers already believed—that when it came to the implementation of the April laws there were “tenant judges” and “landlord judges.” Jacob Strahl was one of the so-called tenant judges. Born in 1878, he grew up in Williamsburg, graduated from New York Law School in 1897, and, though a Democrat, was elected municipal court judge from Brooklyn's Fourth District, ordinarily a Republican stronghold, in 1909 (and again in 1919). Widely regarded, wrote the Times, as “the tenants’ friend,” Strahl was very hard on what he viewed as intransigent landlords, so hard that former municipal court judge Edward A. Richards accused him of ruling against landlords “merely for the purpose of gaining public applause.” In the case of one landlord who refused to settle for a 25 percent increase, Strahl ordered his tenants to pay only 10 percent more and granted them a stay of one year. In the case of another landlord who would not go along with a two-dollar-a-month raise, Strahl forced him to let the tenants remain at the old rent by threatening to charge him court costs of ten dollars for each of the sixteen tenants. In late April Strahl announced that he would not issue eviction warrants on May 1, and shortly thereafter he said he would not dispossess anyone for failing to pay a rent increase. Especially revealing was his treatment of Angelina Buongioni, who wanted to oust Mrs. Artilio Cavallaro, a mother of six, from an apartment in which she had lived for two years. Asked why, Buongioni replied: “I want the rooms for my niece,” who, it turned out, had four children. Told that the niece lived in New York, Strahl denied Buongioni's petition, saying, “Let her [the niece] stay in New York. Brooklyn has plenty of rent problems of its own, without importing more.”13

Another of the so-called tenant judges was Jacob Panken. The city's only Socialist justice, Panken was born in Kiev, the son of Russian peasants who had emigrated to the United States when he was a youngster. Raised on his father's farm in Connecticut, he moved to New York City, where he worked as an accountant and studied at NYU Law School. For a while he practiced law on the Lower East Side, helping to found the Amalgamated Clothing Workers and other labor unions. Running on the Socialist Party ticket, he was elected municipal court judge from Manhattan's Second District in 1917. Panken was extremely sympathetic to the many tenants who appeared before him, most of them working immigrants from the Lower East Side. He worked hard to persuade the landlords to reduce their rent hikes. Although nothing in the April laws empowered him to do so, he also ordered them to make much-needed repairs. And he seldom issued eviction warrants. When a landlord named Louis Ruhe, who sold animals and birds for a living, asked the court to oust eight tenants from their apartments at 351 Bowery because he needed the space for his business, Panken denied the request and granted the tenants a stay of sixty days. “Have a heart,” he said to Ruhe. “All I ask of any landlord is to have a heart. Look at [the tenants'] little children. Are they not more important than birds or animals?”¹⁴

Yet another (and by far the most colorful) of the so-called tenant judges was William E. Morris, who presided over the Bronx's Second District Court. Morris was born in Boston in 1858 and, claiming to be four years older than he was, enlisted in the army as a teenager. At seventeen he was assigned to the Seventh United States Cavalry, the luckless force commanded by General George A. Custer that was decimated in 1876 by Chief Sitting Bull and a combined force of Lakota, Northern Cheyenne, and Arapaho warriors at the Battle of the Little Big Horn. Although badly wounded, Morris survived. In 1878 he left the army and moved to New York, where he worked as a waiter in the Bowery and studied law in his spare time. Admitted to the bar, he formed the firm of Morris, Kane & Costello, which built up a successful practice in criminal law. Morris also joined Tammany Hall and went into politics, serving one term as an assemblyman and two terms as an alderman. For a while he was also the leader of Tammany's Thirty-fifth Assembly District Club, a post from which he stepped down in 1911 when he was elected to the first of three successive terms as a municipal court judge. Sitting in the courtroom on Washington Avenue and 162nd Street that he shared with Judge Michael J. Scanlan, Morris became well known after World War I for his deep-seated antipathy to what he referred to as the “grasping landlord” who had no compunction about using the courts “to help him take one-half of a man's income for rent.” But until early 1920 he did not have the power to prevent even “grasping” landlords from raising rents or evicting tenants.15

When the April laws gave Morris the power, he took full advantage of it. In one case a landlord named Philip Becker brought summary proceedings against a group of tenants who refused to pay a 25 percent rent hike. When Morris learned that the rent had been raised three times in the last year, he ruled that the new rent was unreasonable, ordered the tenants to pay the old rent, and granted them a one-year stay. In another case a landlady named Bestnick served notice on a tenant who had been paying $45 a month but balked at paying an additional 25 percent. When Bestnick appeared before him, Morris declared it was “all poppy-cock for landlords to think they were entitled to an increase of 25 per cent. You are welcome to it if you can prove it, but you'll have to do some tall proving to convince yours truly.” Bestnick's lawyer tried anyway, but to no avail. “I'm glad he [the tenant] refused to pay the 25 per cent. increase,” Morris told Bestnick. “You are not entitled to it.” He then fixed the rent at $45 until March 1, 1921. “But your Honor,” objected Bestnick's lawyer, “I think—.” “There's no charge for thinking,” Morris interrupted. “I have ruled. Good day.” In another case a tenant named Zerkman refused to pay the rent, which had been raised from $25 to $29 a month, because the landlord had failed to keep his promise to paint the apartment. “Now Shapiro,” Morris said to the landlord, “You look like a pretty good fellow. Get a couple of gallons of second hand paint and fix this woman's apartment up.” When Morris added, “I know a lot of Shapiros that are good painters,” the landlord chimed in, saying, “I'm a painter myself.” “That makes it all the better,” said Morris. “Now madame pay your rent and Shapiro here will do a little artistic work on the walls and ceilings of your apartment.”¹⁶

As reluctant as Morris was to allow landlords to raise rents, he was even more reluctant to permit them to evict tenants. Rather than dispossess one group of tenants for nonpayment of rent, he granted them stays of thirty days and said, “If you haven't found a place by then, come back and I'll give you a month or two more.” He gave other tenants stays of twelve months, the longest allowed under the April laws. And he refused to oust a tenant whose landlord had raised the rent from $47 to $65 a month on the grounds that she was undesirable. Telling her, “If you had paid him the $65 you would be very desirable,” he allowed her to remain in the apartment at the old rent for nearly nine months. Morris also balked at evicting a tenant whose landlord said he wanted to move from his fifth-floor apartment into her first-floor apartment because his wife, who suffered from heart disease, had trouble climbing stairs. Saying, “Climbing stairs is the healthiest thing in the world,” Morris granted the tenant a stay of almost eight months. When another landlord claimed that a tenant was not entitled to a stay because she had not made an attempt to find a new apartment, a claim that she disputed, Morris said he agreed with her. “I know nearly every house, every apartment and nearly every family [in the neighborhood], and I know you can't get rooms.” He gave her a stay of two and a half months—though, to the surprise of the spectators, at a higher rent—and promised to extend it if she could not find another apartment. If any doubts remained about where Morris stood, they were dispelled one day in early August when he told a thousand people who jammed his stifling courtroom, “It's too hot to put people out now, and in a few months it will be too cold to do so.” “I can assure you now there will be no evictions,” he went on. “We are not going to put people on the street.”17

Morris was greatly admired by the tenants, who found him deeply compassionate and highly entertaining. The Home News reported that at a meeting of the Fair Play Rent Association, at which he was the speaker, “men and women stood and shouted, each trying to be the loudest in their cries of welcome.” After he dismissed a case in which the landlord failed to appear, some of the tenants stopped long enough as they left the courtroom to say, “Thank you, Judge Morris. God bless you Judge.” In anticipation of the upcoming Jewish holidays, one tenant wished him “Happy New Year.” Admired by the tenants, Morris was despised by the landlords, who thought he was abusing his authority and was to be avoided if at all possible. He was the target of “poison-pen letters” from anonymous New Yorkers who referred to him as “you old fool” and “you old bum.” He was also the focus of criticism by disgruntled lawyers, to whom he gave as well as he got. When one charged that Morris was prejudiced against landlords, he responded that he had nothing against landlords, only against rapacious landlords. When a lawyer who was so angry the judge had postponed his case because of the heat announced that he was going to apply for a writ of mandamus, which would have forced Morris to hear the case forthwith, the judge shouted, “I'll mandamus you in the nose.” When another lawyer was so incensed that the judge had denied his client eviction warrants that he threatened to appeal to the Supreme Court, Morris told him, “Go to the Supreme Court. Go to hell. I think more of one little finger of one of the children of those tenants than of all the bleeding, grasping landlords combined.”¹⁸

Few judges ruled in favor of the landlords as consistently as Strahl, Panken, and Morris ruled in favor of the tenants. Hence it is much easier to identify the so-called tenant judges than the so-called landlord judges—the judges, said Aaron J. Levy, to whom the landlords brought their cases and “winked and won.” Indeed, some of the so-called landlord judges were anything but. Consider Harry Robitzek, who presided over the First District Court in the Bronx. Born in New York City in 1883, Robitzek studied at Columbia and NYU Law School, served two terms on the Board of Aldermen, and was elected a municipal court judge in 1917. Although regarded by some as a “landlord's judge,” Robitzek handled disputes arising out of the April laws in an evenhanded way. He allowed rent hikes, even hikes as high as 20 to 25 percent, but not over what he called “the present inflated rents” and not without evidence that the increase was justified. More often than not, he tried to persuade the landlord and tenant to settle. In some cases, notably where the tenants refused to pay the old rent or a small increase, he was ready to issue an eviction warrant. But in most he was inclined to grant a stay, sometimes for as long as twelve months. Robitzek was willing to remove a tenant on the grounds that he or she was “undesirable,” but only if the landlord could prove it. He was also prepared to oust a tenant if the landlord needed the apartment for himself or a member of his immediate family, but not if the ouster was a way to get around the April laws. And if a landlord claimed he wanted to remove the tenants in order to remodel the building, Robitzek insisted that he submit architect's drawings, building permits, or other evidence to support his claim.19

Unlike Harry Robitzek, Peter A. Sheil, who also presided over the Bronx First District Court, was very much a “landlord's judge.” Born in 1874, Sheil grew up in the Bronx. After graduating from P.S. 12, he studied at Manhattan College and New York Law School and was admitted to the bar in 1898. Like many other ambitious young men, he joined the Democratic Party and went into politics. After serving three terms as an alderman, he was elected a municipal court judge in 1907. He was reelected in 1917—and again in 1927, less than a month before he died of a heart attack. From the start it was clear that Sheil was not inclined to rule in favor of the tenants in cases arising out of the April laws. Of the more than two hundred tenants who appeared before him in late April for nonpayment of rent, only a few had their raises reduced—and then only by one or two dollars. Most were ordered to pay the full increase, “even in some instances,” wrote the Times, “where the landlord indicated a willingness [to] compromise.” In one case Elizabeth H. Sears raised the rent from $28 to $32 a month in an apartment house on East 189th Street, a house so decrepit, said one observer, that the “ceilings looked like badly put together Chinese puzzles in plaster.” She then brought summary proceedings against seventeen Italian American tenants who went on strike. When Sears told the court that the current rent was not enough to cover the upkeep—and that the extra money was necessary to avoid foreclosure—Sheil accused the tenants of “profiteering.” Although she was willing to settle for a two dollar increase, he ordered them to pay the full four dollars. “These tenants have a soviet of their own,” said the judge, who vowed “to break it up.”²⁰

Sheil decided two other cases in July that underscored his sympathy for the landlords. One arose when the Feldblum Realty Company, which had bought an apartment house on East 167th Street in late March, notified the twenty tenants a few days later that the rents would be raised eight dollars to ten dollars a month. Although the building had not been repaired in years, the tenants agreed to pay the increase, largely because Feldblum Realty offered them an eighteen-month lease. But when the company withdrew its offer, the tenants changed their minds—whereupon Feldblum Realty brought summary proceedings against three of them, one of whom was the chairman of the tenants’ committee. Before the hearing the committee calculated Feldblum Realty's revenues and expenses and concluded that the company was already earning 44 percent a year on its investment. With the proposed rent hike, it would earn over 66 percent. But Sheil never gave the tenants a chance to submit their figures. Instead he summarily ordered the three tenants (and by implication the seventeen others) to pay 25 percent more than they had been paying in July 1919, which was only a few dollars less than Feldblum Realty was asking. The tenants were furious. The 25 percent clause was designed “to give deserving landlords a fair break,” said one. “It was not intended to be imposed indiscriminately in all cases,” especially not when the landlord was already earning 44 percent.21

The other case arose when twenty-four tenants who lived in a rundown tenement house on East 136th Street went on strike after the landlord notified them that the rent was being raised well over 25 percent. Indeed, in the case of one woman with seven children whose husband earned $31 a week, it went up from $32 to $52.50 a month, or more than 60 percent. Although the building had not been repaired in seven years, the tenants were willing to pay a 25 percent increase. “But Justice Sheil would not listen to us,” one tenant told a Home News reporter. “He said we would have to pay the landlord what he asked without argument or else get out.” When they refused, Sheil issued eviction warrants. “We elected him,” she said, “and this is what he does for us.” Judge Sheil sometimes ruled in favor of the tenants. In one case Joseph Spivack gave Mrs. F. Minton thirty days to move out of her apartment on East 164th Street. When he learned that the case was going to be heard by Morris, Spivack sent his son to ask for an adjournment on the spurious grounds that he was ill. Not taken in, Morris denied the request and allowed Minton to stay put. Spivack tried again, this time in Sheil's courtroom. Although Spivack now said he wanted to oust Minton because he intended to move into the apartment, Sheil refused to modify Morris's ruling. In another case Nellie and Alexander Weddick claimed they needed John J. O'Connell's apartment on East 201st Street for a niece and her three children, a claim challenged by O'Connell's lawyer, who argued that the Weddicks wanted to oust his client because he had refused to pay a rent hike. Sheil resolved the dispute by ordering the Weddicks to give O'Connell a one-year lease, albeit at a higher rent. But few tenants fared as well in Sheil's courtroom as Minton and O'Connell.²²

Among the other judges who ruled in favor of the landlords in cases in which many of their colleagues would probably have ruled in favor of the tenants were George L. Genung and Michael J. Scanlan. Born in upstate New York in 1882, Genung went to Cornell and New York Law School, worked as secretary to Nathan L. Miller, a New York Supreme Court justice (and later governor of New York), and at thirty-five was appointed to fill a vacancy in Manhattan's Ninth District Court. Shortly thereafter he was elected to a full ten-year term. Like all municipal court judges, Genung sometimes sat in courts other than his own. One day in late August he presided over a dispute in the Sixth District Court between the Kayell Realty Corporation, which owned an apartment house on East 97th Street, and forty of its tenants, who refused to pay a 40 percent rent hike. When Genung proposed that the tenants pay an increase of 25 percent immediately and 10 percent more on October 1, William Karlin, the tenants’ lawyer, objected, pointing out that the rents had already been raised $3 to $5 in April 1919, another $11 in November 1919, and now ranged from $28 to $42 a month. “I don't care how large the rents are,” said the judge, “the law recognizes the landlord's right to [a] 25 per cent increase,” a common but erroneous reading of the April laws. After conferences among Genung, Karlin, and Alexander Lurie, the landlord's agent, and between Karlin and his clients, Genung decided to grant the tenants a stay until October 1, after which the rents would be raised 35 percent above the August 1919 rates, bringing them from $37.80 to $56.70 a month—a substantial increase, if not quite as much as Kayell Realty wanted.23

Unlike Genung, Scanlan was a native New Yorker. Born in 1858, he attended public school and then studied law at NYU. Admitted to the bar in 1877, he was appointed to fill a vacancy on the Bronx Second District Court in 1916 and a year later was elected to a full term. By a stroke of bad luck, Scanlan was sitting in the First District Court in late September when David Goodman, the owner of a building on Charlotte Street, asked for a final order against Private Beril Bogomolia for nonpayment of rent. A father of three small children, Bogomolia had enlisted in the U.S. Army shortly after the United States entered World War I. At the Battle of the Argonne, wrote the Home News, he “ran into a German machine gun nest” and “was riddled with bullets” that left his left arm and left leg shattered and his right arm useless. After a while Bogomolia was shipped home and admitted to Fox Hills Hospital. While he was undergoing treatment, Goodman notified his wife that the rent was going up from $25 to $35 a month. Mrs. Bogomolia, whose only source of income was a military allowance of $55 a month, pleaded with the landlord to postpone the increase, but to no avail. Fearing eviction, she gave in. Shortly thereafter, however, her husband decided that the rent was unreasonable and refused to pay it. Before long he was summoned to appear before Judge Scanlan. “Pale, emaciated and crippled,” wrote the Home News, the much-decorated soldier “hobbled into the crowded courtroom, assisted by two women.” On the verge of collapse, he described his plight to Scanlan, who, to the dismay of the spectators, ruled against him and, though he had the power to grant a stay of up to twelve months, declared, “You will have to pay your rent or move within five days.” The disabled man sobbed “so this is what I fought for” as he was helped from the courtroom. (Scanlan's decision generated such a furor that the Mayor's Committee on Rent Profiteering managed to obtain a ten-day stay for Bogomolia and stop the city marshals from evicting him.)²⁴

Not long before ruling against Private Bogomolia, Scanlan told the Lockwood Committee that the April laws “have worked out very well [in the Bronx]” and “ought to be left as they are.” Charles Carroll, who had been sitting in Brooklyn's Third District Court for less than a year, agreed. “So far,” he said, “the laws have worked out wonderfully well”—even, he said, in Brownsville, where he had recently sat for three weeks. Adam Christman, who presided over the Third District Court in Queens, felt much the same way. Although he disagreed with how some of his colleagues interpreted the April laws, he had little trouble dealing with disputes that arose out of them. In nine cases out of ten he was able to prevail on the landlords and tenants to settle. Also favorably impressed with the April laws was Frederick J. Spiegelberg, who sat on Manhattan's Fifth District Court. Reminding the Lockwood Committee that the new laws were intended to curb rent profiteering, not to stimulate residential construction, he testified that “they are doing as well as can be done”; indeed, “they are doing much better than most people thought they would do.” Even Fiorello H. La Guardia, president of the Board of Aldermen, praised the April laws. Although they “did not go as far as some of us hoped,” he said, they have been “a blessing for New York City.”25

To other New Yorkers, the April laws were anything but a blessing. By the summer the tenants had come to believe that the laws had not done enough to curb rent profiteering. To the many whose landlords had raised the rent in 1918 and 1919, it was outrageous that some judges were allowing them to raise it 25 percent more in 1920—and might allow them to raise it another 25 percent in 1921. To the tenants who wrongly assumed that under the April laws the landlords were entitled to no more than a 25 percent increase, it was even more outrageous that some judges were letting the landlords raise the rent 40 and 50 percent. Against such rapacious landlords, one tenant wrote Governor Alfred E. Smith, the April laws “have little or no effect.” Many tenants also wrongly assumed that under the new laws they could not be dispossessed as long as they were willing to pay a 25 percent increase. But they soon learned that if the landlord brought summary proceedings against them for holding over, the judge could do no more than grant a stay, at the expiration of which the tenants could be ousted. Rather than face eviction, many tenants gave in to the landlord's demands, no matter how unreasonable. As Judge Strahl put it, “holdover proceedings have turned into holdup proceedings.” The tenants were also dissatisfied with the April laws because some judges gave stays of one month, others of three months, and still others of one year. Moreover, said Judge Christman, some judges would grant a stay and then tell the tenant, “If you cannot find anything in that time, come back here, and I will give you a further stay,” and others, himself among them, held that no judge “has a right to grant a further stay [once he] signs a final order.” As Mrs. Harry Arthur, a leader of the Fair Play Rent Association, told the Lockwood Committee, when women facing summary proceedings asked her, “Do you think we have got a chance[?]” she responded, “Who is your Judge and where is your court[?]”²⁶

Another source of dissatisfaction was what Leo Kenneth Mayer called “the many devious methods by which landlords tried to circumvent the recently enacted rent legislation and frighten tenants into paying inflated rentals.” Some landlords applied to what Jacob Strahl branded “handpicked” state court judges for a writ to prevent the municipal court judges from hearing cases until the tenants had been evicted. In some instances the landlords also threatened to sue the tenants for damages in state court if they refused to move out after their leases expired. Some landlords were “ready to swear to anything as long as [they] get the Almighty dollar,” charged Judge Morris, even if it meant committing perjury. In an attempt to justify rent hikes, they inflated the old rentals and submitted fraudulent receipts for expenses. In an effort to oust the current tenants, they claimed they wanted apartments for themselves that they had no intention of occupying. They also filed for permits for alterations and renovations that they had no intention of making. Some landlords converted large unfurnished apartments into two or more small furnished apartments, charging exorbitant rates for a few pieces of furniture and in the process, said Arthur J. W. Hilly, replacing families with bachelors or couples with “a pet dog.” Other landlords designated apartment houses as office buildings, which were not covered by the April laws. Still other landlords put their buildings on the market as cooperatives, which, Mayer pointed out, was done sometimes “to get tenants out quickly [and] to get others in at fabulous rentals, and at other times as a stock-jobbing scheme through which the promoters hope to unload their property at highly inflated prices[,] at the same time perpetuating their management and control.”27

The landlords were even more dissatisfied with the April laws than the tenants. Despite the repeated assurances by Senator Lockwood and Judge Spiegelberg, most of them soon became skeptical that the new laws were aimed exclusively at rapacious landlords. Even reputable landlords were not being given a “square deal,” said the Harlem Property Owners’ Association. Under the April laws, the landlords complained, many judges did not allow them to raise their rents enough to cover their expenses, and some did not allow them to raise the rents at all. Hence many landlords were hard-pressed to make ends meet. Asked in court what profit he made on his investment, a Bronx landlord replied, “Profit! Ugh, believe me, Judge, I don't know what a profit is.” “It's a crime, Judge, the way I am losing money,” money that “I spend like running water.” Some landlords even claimed that the April laws were driving them to “the verge of bankruptcy,” wrote the Home News. Under the new laws, the landlords also complained, it was very hard to oust a tenant who refused to pay a rent hike or move out after the lease expired. “This is the tenants’ day,” a Brooklyn tenant told her landlord, who testified that she “as much as defied me to dispossess her.” By virtue of the new laws, Assemblyman McWhinney pointed out, the landlords have a good deal of trouble renting apartments. Given that the municipal court judges were now empowered to grant a stay of up to twelve months to any tenant who tried without success to find another apartment, the landlord “can give [a prospective tenant] no assurance of possession.” The result was an “endless chain of trouble” for landlords and tenants alike, said the real estate interests.²⁸

More frustrating to the landlords than how the April laws were written was how they were enforced. As Rachel Ellison wrote Governor Smith, the April laws left the landlords at the mercy of municipal court judges who “have not the faintest idea of realty values” and whose sympathies “are entirely with the tenants.” The landlords also claimed that the courts were so busy that even if they tried, the judges could not give each case the attention it deserved. With so many cases on the calendar, a judge would have to be “a lightning calculator” to figure out what rent a landlord was entitled to. And not all judges tried, said Michael Murray, who owned a house on Hunt Avenue in the Bronx. Murray brought summary proceedings against John W. Pawling for nonpayment of rent in early August. Although Murray had raised Pawling's rent from $27 to $40 a month, or nearly 50 percent, he felt that the increase was justified because he had spent $3,200 on the property in the past few months, finishing the exterior in stucco and putting in electricity, hot water, and steam heat, all of which turned it into “one of the finest houses in the neighborhood.” But even before Murray had a chance “to say a word” to the court, Judge Robitzek granted Pawling a stay until January 1921 at the old rent—and, to the landlord's dismay, promptly called out, “Next case.” Stanley M. Isaacs held that the April laws not only posed a problem “far beyond” the capacity of many municipal court judges, but also provided few guidelines to help them solve it. The judges did not even see fit to follow the rules they themselves had established, Isaacs added, and thus “each justice establishes and applies his own theories.”29

Some New Yorkers also charged that the April laws blocked the resumption of residential construction. Among the most outspoken was A. C. McNulty. In the aftermath of World War I, he wrote Governor Smith, it was extremely risky to build an apartment house. Under the April laws it was downright foolhardy. “No sane man” would erect an apartment house knowing that “when completed and occupied[,] the property would pass from the control of its owner to that of the Municipal Court Justices.” Nor would anyone invest in such an enterprise, added Albert H. Atterbury. Other New Yorkers contended that these charges were groundless. Judge Spiegelberg insisted that residential construction was at a standstill not because of the April laws, but because of the cost of labor, the scarcity of materials, and the shortage of capital. Clarence S. Stein, secretary of the Reconstruction Commission's Housing Committee, agreed. The April laws had no impact on builders because “they were not going to build [anyway],” he said. It is not clear which side was right. Despite the unfavorable economic conditions, builders were putting up offices, lofts, theaters, and garages—indeed virtually everything except dwellings, which were the only buildings that were covered by the April laws. By the same token, residential construction was still in the doldrums not only in New York, but also in Chicago and other cities where rents were not regulated. What is clear is that the April laws had done nothing to stimulate residential construction. Or as Walter J. Arndt, secretary of the Citizens Union, told Governor Smith, they had not provided builders any incentive to erect apartment houses.³⁰

Given the widespread dissatisfaction with the April laws, many New Yorkers urged Governor Smith to call a special session of the state legislature to try again to resolve the housing problem. At first it was just a few tenant activists, civic leaders, and financiers. But they were soon joined by a diverse group, Republicans as well as Democrats, among them Borough President Curran, Judge Robitzek, Senator Dunnigan, and Harry Allen Ely, president of the Washington Heights Tenants Association. Also included was the Mayor's Housing Conference Committee, a blue-ribbon panel that was appointed by Mayor Hylan in May and, under the leadership of Tenement House Commissioner Frank Mann, was supposed to find ways to stimulate residential construction. Not everyone was in favor of a special session. Hilly saw no need for one, especially if its purpose was to revise the April laws. Judges Spiegelberg and Scanlan agreed with him, as did Mayor Hylan, Leo Kenneth Mayer, and Commissioner of Accounts David Hirshfield. But they were the exceptions. And as Hilly acknowledged, by mid-summer the governor, who was nearing the end of his first term and getting ready to run for a second, was under a great deal of pressure to summon the legislators back to Albany before the November election—a move, the Real Estate Board pointed out, that would lend support to its position that the enactment of the April laws had been a serious mistake.31

Despite this pressure, Smith was slow to make up his mind. He was well aware that a special session was ordinarily so short, no more than a few days in most cases, that it was unlikely to be productive unless a consensus about what ought to be done was arrived at beforehand. But there was no consensus about how to prevent rent profiteering. Some New Yorkers favored repealing the April laws (and, if that was not possible, loosening them)—a step, said the Real Estate Board, that would ease the housing shortage and thereby curb the profiteering landlords. Others wanted to tighten them. Still others recommended extending them to cover commercial as well as residential tenants and medium-sized as well as big cities. Even among the New Yorkers who wanted to tighten the April laws, there was no agreement about how to do so. Some wanted to broaden the discretion of the municipal court judges, others favored narrowing it, and still others recommended setting up a board that would regulate rents in much the same way that public utility commissions regulated rates. Some New Yorkers were in favor of defining a reasonable rent by statute. Others wanted to place the burden of proof on the landlords even if the increase was less than 25 percent. Still others called for imposing a ceiling of 12 percent on rent hikes. Some New Yorkers favored empowering the judges to grant stays of as long as three to five years—or even longer. Others wanted to abolish summary proceedings in holdover cases. And Ely even proposed banning judges who were landlords from hearing landlord-tenant cases. If introduced at a special session, most of these measures would have run into a good deal of opposition.³²

Nor was there a consensus about how to stimulate residential construction. In order to induce capital to invest in housing, some New Yorkers favored exempting mortgage income from state and federal taxes. Others wanted to exempt new residential structures from local property taxes. Still others recommended that financial institutions, some of which were not averse to lending money to Peruvian railroad companies, be required to invest a portion of their assets in residential mortgages. Some New Yorkers also proposed suspending the Tenement House Act of 1901 until the emergency was over—and in the meantime empowering the tenement house commissioner to expedite the conversion of one- and two-family houses into three- and four-family tenements, a proposal that was strongly opposed by the tenement house reformers. Many other New Yorkers believed that private builders were unlikely to do much on their own to increase the housing supply. Led by Curran, some called for a constitutional amendment to authorize the state and its cities to go into the housing business. Others, among them Clarence S. Stein and the members of the Reconstruction Commission's Housing Committee, favored a constitutional amendment to permit the state to extend credit to builders who wanted to erect moderately priced homes for working people. If introduced at a special session, most of these measures would have run into a good deal of opposition too.33

The governor was well aware that there were times when it made sense to call a special session even in the absence of a consensus about what should be done. And it looked as if the summer of 1920 might be one of those times. Although World War I had been over for more than a year and a half, labor and materials were still so costly and capital still so scarce that very few builders were resuming residential construction. During the first half of 1920, Stein told the Lockwood Committee, fewer than one hundred multi-family houses were erected in New York. And only 2,200 apartments were added to the housing stock, a stunning figure in a city where roughly 28,000 apartments a year had been added before the war. Of the few apartments under construction, the Home News reported, most were rented before they were finished and at rates well beyond the means of working-class families. At the same time nearly one hundred tenement houses were demolished and another two hundred converted into non-residential structures. A number of one- and two-family houses were built, mostly in Brooklyn and Queens, but far too few to make up for the slowdown in apartment-house construction. With New York's population growing steadily, the vacancy rate plummeted. And there was little reason to think it would return to normal in the near future. By mid-1920 New York City was short 100,000 apartments, and the shortage would probably rise to 125,000 by 1921. “We are approaching a crisis,” warned Walter B. Stabler, controller of the Metropolitan Life Insurance Company, in June.³⁴

The April laws, it was widely believed, had headed off one crisis in the spring. But it was far from clear that they could head off another in the fall. Despite these laws, many landlords were raising the rents and, when the tenants refused to pay, bringing summary proceedings. By mid-August, the Times reported, the number of evictions was soaring, reaching one thousand a week in Brooklyn and five to six hundred a week in Queens. Starting in the summer, some landlords also notified the tenants that their leases would not be renewed on October 1 even if they were willing to pay a substantial rent hike. Many others followed suit. Before long they had served roughly 100,000 dispossess notices, generating widespread fears of wholesale evictions in the fall. Several well-informed observers argued that these fears were groundless. Hilly pointed out that even if a landlord refused to renew the lease, the tenant was still protected by the April laws. Judge Spiegelberg stressed that even if a tenant were summoned to court, it would be days, if not weeks, before his case was heard. And in the end the judge would probably give the tenant a long stay. But most New Yorkers were not reassured. They believed that there would be a crisis in the fall, one that would be “beyond anything New York has ever known,” wrote the Daily Tribune. And, said Judge Robitzek, things would be even worse next spring, when thousands of one-year stays would expire and as many as 40,000 families would be left homeless in the Bronx alone. Even Hilly acknowledged that conditions would be “chaotic” in the fall, when tens of thousands of tenants who had leased a new apartment effective October 1 discovered they could not move in because the old tenants would not move out.35

As late as early August, Governor Smith said he had not yet decided to call a special session. Asked about a statement to the contrary by a representative of the Real Estate Board, he declared there was “absolutely nothing” to it. But Smith was being disingenuous. If he had not yet decided to call a special session, he was very much leaning in that direction. Like many New Yorkers, he feared that if there were wholesale evictions in the fall there might well be civil disorder in the city. As Belle Moskowitz, one of his closest aides, pointed out, it would occur “on the very eve of the presidential election, which will play into the hands of the Socialists, who have no remedy themselves [for the housing problem], but will say that they have.” It would also play into the hands of the Republicans, some of whom were trying to capitalize on the widespread dissatisfaction with the April laws. In view of the growing unpopularity of the Wilson administration, moreover, Smith would face an uphill battle in his race for reelection. He was well aware, as one constituent reminded him, that “there are five hundred tenants” for every five landlords. Hence on August 12 the governor issued a proclamation calling for a special session. It was to convene on September 20, which left the legislators only five weeks to reach an agreement about what to do before Moving Day.³⁶

The Daily Eagle had reservations about Smith's decision. Prior efforts to solve the housing problem had “accomplished nothing,” it commented. Given the high costs of labor and materials, any attempt to induce private enterprise to resume residential construction was doomed. And any attempt to amend the constitution to permit the erection of public housing or the extension of public credit would take too long to do much good. The Times was more optimistic. Stressing that the April laws were “merely palliatives,” it expressed confidence that the legislators would be able to devise a policy to ease the housing shortage. Also more optimistic were Curran, who had urged Smith to call a special session, and La Guardia, who praised the governor for keeping “his ears close to the ground.” This optimism, which was shared by other New Yorkers, spurred a flurry of activity. Senator Lockwood promptly announced that his committee would have several recommendations ready by September. And before long hundreds of bills (and a few constitutional amendments) were being drafted to deal with the housing problem, some of which, wrote the Times, were “almost diametrically opposite in their purposes.” It was not without reason that many New Yorkers believed that the special session would be inundated with “a flood of measures.”37

As Smith was well aware, a special session was not the place to deal with “a flood of measures.” Hence a week after issuing his proclamation he appealed to the legislative leaders to come up with “a definite program” that would spare the legislators the task of considering separately each of the hundreds of bills that were likely to be submitted at the special session. The Lockwood Committee was quick to respond. In an effort to restrain what the Times called “the clash of conflicting interests,” it invited virtually every major group with a stake in the outcome of the special session to send one or more representatives to a conference at City Hall. At the conference, which was held in early September, the governor made an impassioned speech in favor of public housing. A week or so later the legislative leaders called a conference of their own to hammer out an agreement before the special session convened. It was not easy to find common ground. It seemed that almost every day one or another group—representing not only landlords and tenants, but also builders, bankers, civic organizations, settlement houses, and state and local officials—came up with recommendations about what should be done (or, just as important, not done) to curb rent profiteering and stimulate residential construction. More often than not, these recommendations were at odds with one another. Even with the strong support of the governor, who pledged “to do everything in his power to cooperate with the Legislature,” it seemed highly unlikely that Assembly Speaker Sweet, Senate President Pro Tem Walters, and their associates would come up with a legislative package before September 20.³⁸

The result was exactly what Smith had hoped to avoid. When the special session convened, wrote the Real Estate Record and Builders Guide, “both the Senate and the Assembly were literally swamped with bills.” The Lockwood Committee submitted eight to stimulate residential construction, five to curb rent profiteering, and one to expand its scope and powers. The governor also made several recommendations, all of which were spelled out in his message to the legislature. With the help of Tenement House Commissioner Frank Mann, New York City Corporation Counsel John O. Brien drafted five bills on behalf of the Hylan administration. The Real Estate Board also came up with a handful of bills, as did the Apartment House Association. Among the others on whose behalf bills were submitted were Hilly, La Guardia, Bronx District Attorney Francis Martin, and the Tenants Union of Greater New York. With the Assembly sidetracked by a debate over what to do about the five ousted Socialists who had regained their seats as a result of a special election on September 16, the Senate and Assembly leaders met on and off for three days to consider the scores of bills in the hopper. Things came to a head on September 23, when, after five noncontroversial bills were passed, a public hearing was held, one that was as acrimonious than the hearing on the April laws. Following the hearing, a group of legislative leaders got together with several influential lobbyists and, driven by the fear that if they did nothing else there would be rioting and bloodshed in October and political retribution in November, hammered out an agreement on another five bills. These bills, which were much more controversial than the first five, were passed just before the special session adjourned late at night on September 24.39

To the dismay of many New Yorkers—landlords as well as tenants, Republicans as well as Democrats—only one of these bills was designed to ease the housing shortage. Known as chapter 949, it was a revised version of a bill introduced by Assemblyman Martin G. McCue at the regular session. Enacted over the opposition of owners of prewar apartment houses, it allowed the cities, towns, and counties to exempt new residential structures—including apartment houses of four or more stories whose ground floor was used for commercial purposes, but not hotels—from property taxes until January 1, 1932, provided that construction was completed after April 1, 1920, or commenced before April 1, 1922, and completed within two years or, if now under construction, before September 27, 1922. In the face of deep-seated ideological and practical objections from the real estate interests, the legislators shelved the bills to amend the constitution to enable the cities to go into the housing business and permit the state to lend its credit to private builders. Under intense pressure from the financial industry, they also backed away from requiring savings banks and insurance companies to invest a portion of their assets in residential mortgages. And when Frank Mann could not reach an agreement with Lawson Purdy and other tenement house reformers, the legislators tabled the bills to amend the Tenement House Act of 1901 and expedite the conversion of one- and two-family houses into three- and four-family tenements. A bill to exempt mortgage income from state taxes, which for a while seemed to be one of the few things on which the legislators agreed, passed the Senate “without a murmur,” wrote the Times. But in the face of strenuous opposition from upstate officials and experts on tax policy, one of whom testified that the measure was nothing but “robbing Peter to pay Paul,” the Assembly voted down the bill by a wide margin. So far as stimulating residential construction was concerned, the legislature has done “nothing, or next to nothing,” noted the Times. It “might as well have not been called into session,” added the Home News.⁴⁰

Much more momentous than chapter 949 were chapters 942, 944, 945, and 947, the other bills enacted at the end of the special session, all of which were designed to protect the tenants from the landlords until November 1, 1922. Chapter 942, which applied only to New York and cities in the adjoining counties, suspended summary proceedings in holdover cases, which meant that under ordinary circumstances a landlord could no longer oust a tenant whose lease had expired. As a result, said Hilly, “moving day” was abolished for two years. “The 100,000 dispossess notices sent out have been wiped out as if they never existed”—and the city marshals deprived of “their lucrative gold mine.” Chapter 944, which applied to New York, Buffalo, Rochester, and Westchester County, tightened chapter 136 of the April laws. It struck out any reference to the 25 percent rule and provided that if a landlord brought summary proceedings for nonpayment of rent he would have to prove to the municipal court judge that the rent hike, no matter how small, was reasonable. He would also have to submit a bill of particulars, spelling out his revenues and expenses, and turn it over to the tenants before trial. Chapter 945, which also applied to New York, Buffalo, Rochester, and Westchester County, supplemented chapter 944. It stipulated that a landlord could not bring summary proceedings for nonpayment of rent unless the rent was no higher than it had been in the preceding month and no higher than it had been a year earlier. Henceforth a tenant could only be evicted for nonpayment of rent if he failed to pay the old rent or a reasonable rent as determined by a municipal court judge. Chapter 947, which applied only to New York City and cities in the adjoining counties, provided that in the event a landlord attempted to circumvent chapter 942 by bringing an action for ejectment, the state court judges would be bound by the same rules as the municipal court judges.41

Governor Smith was far from pleased with the outcome of the special session. Like most New Yorkers, he was disappointed that the legislators had passed only one measure to ease the housing shortage—a measure, some observers believed, that would do little to stimulate residential construction. He was also annoyed that the legislators had ignored the report of the Reconstruction Commission's Housing Committee, whose recommendations embodied his administration's long-term solution to the housing problem. Moreover, Smith was under pressure to veto one or more of the bills. It came not only from spokesmen for the landlords, who, wrote the Call, complained that “the bills limited to an unheard of degree their control over their own property,” but also from spokesmen for the tenants, who protested that “the bills leave so many loopholes that landlords will be able to get by them as they did when the rent laws of last winter were enacted.” These constraints notwithstanding, there was no doubt that Smith would sign the bills. He believed he had to do something to protect New York's tenants. And the only way to do so was to go along with the legislature. A veto, especially a veto of chapters 942, 944, 945, and 947, would have done serious injury to many New Yorkers. And given that on the same day the special session adjourned the Democratic Party nominated Smith as its candidate for governor, it would also have done severe damage to his political prospects. Hence on September 27, a little over a month before the election, Smith signed all ten bills, which took effect immediately and were known as the September laws.⁴²

The September laws—which, together with the April laws, were known as the emergency rent laws—constituted the most extensive revision of landlord-tenant law in New York State since 1820, the year in which the state legislature had established summary proceedings and, in the words of two legal scholars, provided the landlords with “a simple, expeditious and inexpensive” alternative to ejectment. As James C. Cropsey, a Brooklyn appellate court judge, wrote, these laws created a tenancy that was “different from any kind that had theretofore existed or had [theretofore] been recognized.” By that he meant that most New Yorkers were now statutory tenants, who occupied their apartments not by virtue of an agreement with the landlord, but by virtue of a statute enacted by the legislature. As statutory tenants, they could not be ousted from their apartments before November 1, 1922, unless the landlord could prove to the satisfaction of a municipal court judge that he was entitled to an eviction warrant on the basis of one of the four exceptions stipulated in chapter 942. These exceptions were that the tenant was undesirable, that the landlord (or a member of his immediate family) wanted to move into the premises, that the landlord intended to demolish the old building and replace it with a new one, and that the building was being converted into a cooperative whose members intended to live in it. Unless one of these exceptions applied, a statutory tenant could only be evicted if he refused to pay the old rent or a reasonable rent as determined by a municipal court judge.43

In its efforts to regulate rents and prevent evictions, New York did not go as far as France, Britain, and other European countries, most of which enacted extremely stringent housing legislation during and after World War I. As early as December 1914 France had relieved servicemen and their dependents from the obligation to pay rent for up to six months. This law was subsequently renewed—and extended to residents of war zones and other vulnerable groups. In March 1918 it adopted a comprehensive law that protected the tenants against rent hikes and evictions for at least six months after the war. And to ease the burden on the landlords, it passed legislation indemnifying them against 50 percent of their losses and imposing a moratorium on mortgage payments. Britain had also enacted stringent laws to curb rent hikes and stop evictions (as well as to regulate interest rates on mortgages and prevent lenders from calling them). When the housing situation did not improve after the war, Parliament passed the Rent Act of 1920, which eased only slightly the provisions of the previous laws. By the end of the war, wrote Edith Elmer Wood, “nearly the whole of Europe [and not just the countries involved in the conflict] was covered by some form of tenant protection.”⁴⁴

Nor did New York State go as far as some New Yorkers wanted. Besides shelving several bills designed to stimulate residential construction, the legislature ignored a couple of other proposals designed to ease the housing shortage. One, which was supported by the Call and the Nation on the grounds that in light of the current crisis “no man has a moral right to close the doors of a building which he does not use,” would have authorized the municipal authorities to take every unoccupied structure, renovate it, and then rent the apartments to needy tenants. The other proposal—which was backed by Joseph A. Guilder, acting borough president of Brooklyn, and other New Yorkers who were outraged that at the same time that residential construction was at a standstill builders were busily putting up office buildings, movie theaters, and other commercial structures—would have empowered the municipalities to impose a ban on the construction of anything but dwelling places. The legislators also refused to act on a host of other measures that were designed to protect New York's tenants. They did not abolish summary proceedings outright, not for holding over and not for nonpayment of rent. Nor, despite lobbying by merchants, manufacturers, and other businessmen, did they give commercial tenants the same protection as residential tenants. And notwithstanding strong pressure from tenants groups, they did not provide statutory limits on how much and how often the landlords could raise the rent. The legislators also exempted new residential buildings from many of the emergency rent laws.45

But for most New Yorkers, the emergency rent laws went far enough—and, in the opinion of virtually all real estate men, too far. Although they did not go as far as the war measures enacted in Europe, Edith Elmer Wood contended that they were the most drastic infringement of property rights “of any housing measure adopted outside of Soviet Russia.” According to the Times, the emergency rent laws were widely regarded by many lawyers as “the most drastic measures [affecting property rights] ever enacted by the lawmaking body of this State.” The Nation agreed. It found it ironic that the same legislature that began the year by ousting the five Socialist assemblymen ended it by enacting “the most socialistic legislation in the history of the commonwealth.” New York has done more to regulate rents and prevent evictions than any other state, Henry R. Brigham, chairman of the Housing Committee of the National Association of Real Estate Boards, told the Ninth Annual Conference on Housing. Along with the congressional act that set up the District of Columbia Rent Commission—which, said Representative Theodore E. Burton of Ohio, who had served eight terms in the House, was “one of the most drastic statutes I ever read,” one that looked as if it were drawn by “a disgruntled tenant” who wanted “to get even” with his landlord—the emergency rent laws went “far beyond anything ever attempted before in this country,” said Bingham.⁴⁶

Some New Yorkers strongly condemned the emergency rent laws. They were a form of oppression for the landlords and “sovietism for the tenants,” wrote the Real Estate Board. Many other New Yorkers praised them just as strongly. The new laws “are by no means perfect,” declared La Guardia, but “as a first step, they were the most useful piece of legislation in the history of the State.” Virtually everyone agreed that the emergency rent laws were a landmark in the history of landlord-tenant law. The Survey, which was deeply concerned about the plight of New York's tenants, called the new laws “the most radical revision [of landlord-tenant relations] ever attempted in this country.” And the Home News, which boasted that it had long been the champion of the borough's tenants, described these laws as “one of the most drastic acts since the American revolution.” A. C. McNulty agreed. These laws represented “the most extreme exercise of the police power that has ever been essayed by an American commonwealth,” he said. McNulty's view was shared by Louis B. Marshall and Lewis M. Isaacs, both of whom were pillars of the New York City Bar and sharp critics of the emergency rent laws. Pointing out that the laws took the control of property “devoted to purposes essentially private” out of the hands of its owners, they wrote that “never before in the history of our country has legislation of so revolutionary a character been undertaken.”⁴⁷

Aside from several Socialist leaders, one of whom said that the legislature had done too little too late, most New Yorkers held that the emergency rent laws were, in the words of the Globe, “a great victory” for the tenants. As one New York lawyer wrote:

In substance, the State of New York said to the landlords: “You are entitled to rental, but not to extortionate rental; you will not be permitted to take advantage of this extraordinary situation at the cost of the public welfare. You shall not have what the market will enable you to get if it had free scope. We will authorize our courts to fix ‘fair and reasonable rentals’ for such housing and you will take that and no more. We will not permit our courts to be used as instruments of oppression. There will be no dispossession of tenants for non-payment of rents when our courts determine that the rents are reasonable.”48

But other New Yorkers knew that the tenants’ “great victory” might well be short-lived. As Samuel Untermyer, chief counsel to the Lockwood Committee, pointed out, the emergency rent laws stretched the constitutional power of the legislature to “the utmost limit.” And no sooner were the laws enacted than some of the many real estate men who believed that they went well beyond the “utmost limit” decided to challenge them on constitutional grounds.